Dr. Ford recently participated in the exchange in the Bulletin of the Atomic Scientists on the subject of whether or not the IAEA was properly applying legal standards vis-à-vis Iran. This colloquy -- with any associated reader commentary -- may be seen on the BAS website by clicking here. NPF reproduces below the exchange between Dr. Ford, Daniel Joyner, and Andreas Persbo, however, for readers' convenience.

EDITOR'S PREFACE FROM THE BULLETIN

In 1967 -- ten years after the United States and Iran signed a civil nuclear cooperation agreement as part of America's Atoms for Peace program -- Iran debuted its first nuclear facility in Tehran, a 5-megawatt nuclear research reactor, supplied by the United States and fueled by highly enriched uranium. Today, 45 years later, the country's nuclear program is no longer so simple. As international concerns grow over Iran's nuclear ambitions, so, too, do the International Atomic Energy Agency's inspections in Iran. But what are the standards that the IAEA uses to investigate and assess Iran's compliance with its safeguards agreements, and are they the legally correct standards? Until December 17, Christopher Ford, Andreas Persbo, and Daniel Joyner will tackle this very Roundtable question.

FORD'S CONTRIBUTION

Ever since the first public revelations of Iran's nuclear program in 2002, the International Atomic Energy Agency (IAEA) has struggled to verify and document Iran's degree of compliance with a range of legal obligations. Iran and its defenders have periodically contested the legal standards applied to Tehran, but these criticisms have so far been tendentious and insupportable.

The first challenge for IAEA investigators was to verify compliance with Iran's Comprehensive Safeguards Agreement PDF (CSA), which, it quickly became clear, Iran had repeatedly violated -- for example, by secretly importing uranium and experimenting with uranium conversion, plutonium separation, and laser enrichment. The information gathered by the IAEA -- and the data provided by Iran under additional promises of transparency -- formed the basis of the agency's 2004 findings that Iran had breached its safeguards agreement in reporting the possession, processing, and use of nuclear material, and declaring facilities where such material was processed and stored. The agency's report was painstakingly documented and amply justified. In fact, it is worth mentioning that if the IAEA were guilty of any legal fault at this point, it was in its refusal to follow its own statute for nearly two years in order to protect Iran from UN Security Council sanctions. Pursuant to the IAEA statute, if noncompliance is found, the Board of Governors shall report it to the Security Council; this was not done, however, until 2006.

In February 2003, less than a year after the program was widely revealed, Iran agreed to a modification of Code 3.1 of the Subsidiary Arrangements, which provide amplifying detail for safeguards procedures and obligations under its CSA. Because the original requirements for providing design information about new facilities left too little time for proper safeguards to be established, the IAEA had long been trying to obtain agreement on this particular adjustment. In March 2007, however, the Iranians announced that they were "suspending" this modification.

Iran maintains that it had the right to suspend the modified provision because it had not been ratified by parliament; however, Iran's CSA, which was ratified by parliament, specifies that Subsidiary Arrangements are to be created or modified only "by agreement" between Iran and the IAEA -- that is, not unilaterally (Article 39). Were Iran's position correct, the entire IAEA safeguards edifice would fall apart, for most of the operational details of all safeguards measures everywhere are provided by Subsidiary Arrangements, rather than in the actual Comprehensive Safeguards Agreements. If compliance with the Subsidiary Arrangements were optional, governments could modify IAEA safeguards procedures at nuclear facilities at their whim, making nuclear accountability impossible.

Fortunately, Iran's position is incorrect. The text and structure of Iran's CSA make clear that Subsidiary Arrangements are intended to be legally binding, for they are integral to the coherence of the safeguards mechanism the agreement establishes. There are numerous points at which the agreement states that parties must follow the detailed procedures established by the Subsidiary Arrangements (e.g., Articles 32, 42, 51, 65, 68, 75, 76, and 90). The Comprehensive Safeguards Agreement -- which requires the creation of Subsidiary Arrangements, provides a mechanism for their establishment, and obliges parties to follow their provisions -- refers to the arrangements for a whole host of matters that were clearly not intended to be left to the caprice of the host government. In fact, in Article 60, the CSA even authorizes the Subsidiary Arrangements to supersede the provisions of the CSA itself. If the arrangements were not binding, and were not modifiable only by agreement, the CSA's structure and text would be inexplicable and incoherent.

The IAEA is thus correct in continuing to apply the modified Subsidiary Arrangements to Iran -- and each time Iran refuses to provide timely information, it is another safeguards violation. The Security Council has also acted under Chapter VII of the UN Charter to require that Iran comply with the arrangements; Iran's refusals constitute violations of this charter.

In addition to safeguards, the IAEA must verify Iran's compliance with its agreements and obligations to suspend various aspects of its nuclear program. The agency's role in verifying suspension began with Iran's promise in October 2003 -- as part of an agreement Tehran made with Britain, Germany, and France -- to suspend all enrichment and reprocessing activities. In December 2003, Iran agreed to sign the Additional Protocol, a safeguards standard established in the 1990s in order to give the IAEA more investigative tools to fulfill its responsibility for verifying the absence of undeclared nuclear activities and the correctness and completeness of declarations. This IAEA responsibility stems from the CSA, which gives the agency the "right and the obligation" to ensure that safeguards are applied to "all" relevant nuclear material in peaceful activities in Iran: This necessarily implies the right to look into the possibility that some material or activities haven't been declared, and to assess the veracity of declarations.

Iran subsequently repudiated the protocol, but in multiple Chapter VII resolutions, the Security Council has imposed further obligations upon Iran: to take steps demanded by the IAEA Board of Governors to clarify outstanding issues, to suspend enrichment-related and reprocessing activities, to stop construction of a heavy water reactor, to ratify -- and, pending ratification, comply with -- the Additional Protocol, and to give the IAEA more access to information than even specified by the protocol. The agency has been tasked with verifying compliance and Iran has been required to cooperate with the IAEA, so this constitutes another set of IAEA legal authorities and standards to apply vis-à-vis Iran. So far, there is no evidence that these standards have been improperly applied.

"While the Agency continues to verify the non-diversion of declared nuclear material at the nuclear facilities and [locations outside facilities (where nuclear material is customarily used)] declared by Iran under its Safeguards Agreement, as Iran is not providing the necessary cooperation, including by not implementing its Additional Protocol, the Agency is unable to provide credible assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities."

In his report to the IAEA Board of Governors, Director General Yukiya Amano states -- as did his predecessor, Mohamed ElBaradei -- that the agency can indeed verify that all declared safeguarded nuclear material in Iran has not been diverted to non-peaceful use. This mandate for investigation, as well as the assessment standard for this investigation, comes directly from Article II of Iran's Comprehensive Safeguards Agreement (CSA) with the IAEA, which mandates the agency to verify "that such material is not diverted to nuclear weapons or other nuclear explosive devices." Currently, Iran has only one safeguards agreement in force with the IAEA.

But the director general's report also applies two additional and separate legal standards -- "to provide credible assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities" (author's emphasis) -- and makes two assessments based on them.

So where do these two new criteria come from? This is an important question because they, together with Article II of the CSA, are the legal standards that the IAEA has used, since at least 2006, as its scope of mandate for investigation and assessment of Iran's compliance with its safeguards obligations. And it's been on the basis of the application of these legal standards that the IAEA has continued to consider Iran to be in noncompliance with its safeguards obligations.

This IAEA assessment, in turn, has shaped both the diplomatic and security climate surrounding Iran and the substance of negotiations between Iran and the P5+1. It has also formed a basis of asserted legitimacy for the economic sanctions, applied both multilaterally and unilaterally by the West, that have crippled the Iranian economy.

The IAEA likely would assert that its mandate to apply these two additional legal standards derives from UN Security Council Resolution 1737 and Iran's CSA with the agency. (The space constraints of this Roundtable forum prevent me from analyzing these sources fully; however I have done so in a recent blogpost on Arms Control Law.)

I think that the two additional legal standards are ultra vires, or beyond the authority, of the IAEA to apply to Iran and to be the basis for investigations and assessments by the IAEA. The only lawful standard for the IAEA to apply is the clear standard from Article II of Iran's CSA, i.e. that all declared, safeguarded nuclear material in Iran has not been diverted to non-peaceful use.

It must be remembered that the IAEA is not a general policeman of international nuclear energy law. It is not the "UN's nuclear watchdog," as the media is so fond of calling it. The agency is an independent international organization, which was created through a treaty -- an instrument of international law. As such, it has only the international legal personality and the limited mandate of legal authority, which are provided both in the agency's statute and in its bilateral Safeguards Agreements with member states.

So what does this mean in application? It means that the current director general and his predecessor have consistently assessed in their reports to the Board of Governors that, according to this one lawful standard, Iran is in full compliance with its IAEA safeguards obligations.

It also means that, since Iran neither has an Additional Protocol in force with the IAEA, nor is under any legal obligation to conclude one, the fact that the agency is "unable to provide credible assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities" -- standards derivable from the protocol -- is legally irrelevant.

Furthermore, it means that the IAEA does not have the legal authority to either investigate possible military dimensions, or the weaponization, of Iran's nuclear program, or to publish reports making assessments on this issue, as it did in November 2011.

In overstepping the bounds of its legal mandate through the application of these unwarranted legal standards of investigation and assessment, particularly during the tenure of current Director General Yukiya Amano, the IAEA has undermined the perception of its independence and objectivity. Indeed, many developing countries now believe the IAEA has simply become one more politicized instrument of the foreign policy goals of the United States and other Western nations. This is a great tragedy for those of us who support and value the IAEA's proper role in the nuclear nonproliferation legal regime and the important work it has done in this role in the past.

-- Daniel Joyner

PERSBO'S CONTRIBUTION

Earlier this year, I published a 17-page paper on nuclear safeguards commissioned by theEU non-proliferation consortium; that paper only scratches the surface of how safeguards work. Attempting to summarize the legalities of this complex system on a specific country will not be easy. This Round One essay nevertheless attempts to encapsulate the law of safeguards as applied on Iran's nuclear fuel cycle. As the Roundtable format is brief, less than 900 words, it will involve a certain degree of cherry picking; however, I hope that the following debate will help bring out a fuller flavor of the regime and synopsize its contemporary problems.

It is best to start with the basics. Iran joined the 1968 Nuclear Non-Proliferation Treaty (NPT) on February 2, 1970. By ratifying the treaty, Iran undertook not to "manufacture or otherwise acquire nuclear weapons or explosive devices" (Article II). It also pledged to sign-up to safeguards "with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices" (Article III.1). The International Atomic Energy Agency (IAEA) is charged with the administration of safeguards under the treaty. A Safeguards Agreement is a separate, legally binding contract between the IAEA and the state. Hence, there are situations when a state can be in compliance with the UN treaty, but not with its Safeguards Agreement. In the past, Iran has not been compliant with its agreement (for instance, in June 2003 and September 2003), whereas its compliance with the NPT has not been established.

Though the process is outlined in the Safeguards Agreement, the easiest way to explain the safeguards system is to paraphrase Hans Blix. The IAEA is a bit like the taxman, investigating annual tax returns. The taxman checks that the income declaration is correct, but may, if the submitter is unlucky, also look into whether everything is complete. The IAEA, in a similar way, confirms that the material balances in the country are as declared, but it also makes an assessment on whether it seems complete.

Iran has a Comprehensive Safeguards Agreement (CSA) with the IAEA. The agreement is called "comprehensive" because it covers "all source or special fissionable material in all peaceful nuclear activities within [Iran's] territory, under its jurisdiction or carried out under its control anywhere" (Article 1). In terms of verification, the IAEA has the "right and the obligation to ensure that safeguards will be applied" on this material "for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices" (Article 2). These two articles of law need to be fully digested and cannot be subject to a quick read.

Consider that the agreement applies to all source or special fissionable material, irrespective of where it is located, if it is declared or undeclared, or even placed in a nuclear explosive device. In practice, this means that the IAEA always needs to check that Iran's material declarations are correct as well as complete. If it did not, it would fail to abide by its own obligations under the agreement. It has long be recognized, however, that doing this completeness check is difficult without some strengthened authority.

Therefore the IAEA, in the early 1990s, embarked on a process to strengthen safeguards, whereby the Additional Protocol was developed. (Several articles on this are publicly available, but Suzanna Van Moyland's "The IAEA's Programme 93+2" is an excellent background read.) One of the drivers behind the drafting of the CSA's Additional Protocol was to make it easier for the agency to draw a conclusion that there is no undeclared nuclear material in a member state. However, it is important to underline -- indeed highlight brightly -- that the IAEA's obligation to draw conclusions on the absence of undeclared material is inherent in the CSA. This was not an innovation introduced by the Additional Protocol, as it is sometimes claimed.

So does Iran's Safeguards Agreement require the IAEA to verify that materials have been placed in nuclear explosive devices? No, not at all. The objective of safeguards procedures in Iran is the "timely detection of diversion of significant quantities of nuclear material from peaceful nuclear activities to the manufacture of nuclear weapons or of other nuclear explosive devices or for purposes unknown, and deterrence of such diversion by the risk of early detection" (CSA, Article 28). The reference to "purposes unknown" anticipates situations when a diversion of material to a weapon cannot be conclusively proven. It stands to reason that the IAEA should be able, and indeed is expected, to report to its members if enough material for a nuclear weapon cannot be accounted for.

The paragraphs above capture the essence of the IAEA's authority to conduct inspections in Iran, and the basis of its right, indeed obligation, to follow up on concerns on undeclared material. This includes possible military dimensions of Iran's nuclear program, as these activities by themselves are indicators of misuse of nuclear material.

Another way of putting it is to say that the IAEA simply employs standards agreed with Iran to investigate and assess the country's compliance with its Safeguards Agreement, and that the agreement should be kept. Those standards are legally correct and politically appropriate. In addition, Iran could take an essential step toward concluding that all material in Iran is in peaceful use by ratifying the Additional Protocol. The ratification would hence, ultimately, serve Iran's best interest.

Dr. Christopher Ford is Chief Legislative Counsel for the U.S. Senate Foreign Relations Committee. He previously served as Chief Investigative Counsel for the Senate Banking Committee, Republican Chief Counsel for the Senate Appropriations Committee, Senior Fellow at Hudson Institute, U.S. Special Representative for Nuclear Nonproliferation, Principal Deputy Assistant Secretary of State, Minority Counsel and then General Counsel to the Senate Select Committee on Intelligence, and Staff Director of the Senate's Permanent Subcommittee on Investigations.
A graduate of Harvard (summa cum laude), Oxford (as a Rhodes Scholar), and the Yale Law School, Dr. Ford was also ordained by Roshi Joan Halifax of the Upaya Zen Center as a lay chaplain in a lineage of Soto Zen Buddhism. He was a jujutsu student of the late Grandmaster Dong Jin Kim of the Jigo Tensin Ryu lineage, and is a member of Dai Nippon Butoku Kai with Sandan (3rd degree black belt) rank. Dr. Ford served from 1994 until 2011 as an intelligence officer in the U.S. Navy Reserve, and is a member of the International Institute for Strategic Studies, Chatham House, and the Council on Foreign Relations.
Dr. Ford is the author of the books "China Looks at the West: Identity, Global Ambitions, and the Future of Sino-American Relations" (2015), "The Mind of Empire: China's History and Modern Foreign Relations" (2010), and "The Admirals' Advantage: U.S. Navy Operational Intelligence in World War II and the Cold War" (2005). He also co-edited "Rethinking the Law of Armed Conflict in an Age of Terrorism" (2012). For a list of his publications, see http://www.newparadigmsforum.com/NPFtestsite/?page_id=1628.
The views he expresses here are entirely his own, and do not necessarily reflect those of anyone else in the U.S. Government.

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